Toronto Catholic School Trustee Makes Free Speech Case for His LGBT, Abortion Comments

Toronto Catholic District School Board Trustee Mike Del Grande has been accused of misconduct by the Ontario College of Teachers and is awaiting a tribunal decision. Courtesy of Mike Del Grande

Nearly two years of disciplinary hearings for a Toronto Catholic school board trustee have wrapped up, with final arguments focusing on free speech and its limitations.

The Ontario College of Teachers brought Mike Del Grande before a tribunal in hearings starting November 2022 for comments he made about gender identity and abortion in 2019. Del Grande has a teaching licence but has never worked as a teacher.

His attorney, Charles Lugosi, argued that the college has no jurisdiction over his speech because he was speaking as a trustee and not as a teacher. Lugosi also argued the “political” speech of an elected official should be protected from discipline by a professional regulator.

“It’s really inconceivable to suggest that any administrative body of any regulated profession can simply reach into the legislative forum ... and say what you do in your legislative chamber is subject to our approval and discipline if you so happen to be a member of our profession,” Lugosi said during a Sept. 4 hearing.

He argued that any doctor, nurse, teacher, engineer, or other regulated professional who decides to run for office should be free to speak on controversial or political issues.

The college argued in turn that the trustee’s comments “poisoned” the environment for students. It cited cases in which teachers have been disciplined for off-duty actions and argued that Del Grande’s situation is similar.

The manner in which Del Grande made his comments constitutes misconduct, the college said. Elements of the alleged misconduct include abusing a student verbally or emotionally, and conducting himself in a manner unbecoming a teacher.

Professional regulators have legal power to limit speech in some instances as part of their mandate to protect the integrity of their professions if the licence-holder wants to remain registered. The extent to which such regulators can discipline members for public comments has been a matter of much debate in Canada in recent years.

The high-profile case of psychologist and author Jordan Peterson came up as part of the case-law cited during Del Grande’s hearings. Peterson was ordered by the College of Psychologists and Behaviour Analysts of Ontario to take social media training or lose his licence. At issue were comments he made about politicians, a transgender actor, and others.

Peterson has identified himself publicly as a psychologist, Lugosi said, noting that Del Grande “has never self-identified as a teacher, privately or publicly, and he has never practiced as a teacher.”

During the final two days of hearings, Sept. 4 and Sept. 5, counsel for both sides reviewed testimony and arguments made throughout the 14 preceding hearings.

Abortion Talk

The first incident in question took place after a Toronto Catholic District School Board meeting on Sept. 25, 2019.

The board’s Catholic Values Subcommittee discussed a proposal to play a film titled “Unplanned” in some classrooms. The film is based on the memoirs of anti-abortion activist Abby Johnson who was once a clinic director at Planned Parenthood. Johnson’s story details negative experiences at the clinic, particularly watching via ultrasound as a fetus was being aborted.

Taylor Dallin, a student trustee at the time, expressed concerns about the film’s pro-life stance as she is pro-choice. While she spoke, Del Grande was allegedly “rolling his eyes, sighing, frowning, snickering, using a hostile and/or sarcastic tone and using aggressive body language,” the college’s notice of hearing said.

After the meeting, he approached her in the trustee’s lounge and asked her further about her views on abortion, which he said were contrary to Catholic values.

Other trustees were present during this conversation, and some of them testified during the hearings. Dallin also testified.

The final hearings re-examined testimony regarding the tone and volume of Del Grande’s voice, as well as other indicators of whether it was a civil conversation or “bullying.”

“The most apt description of the member’s interaction with Taylor Dallin was bullying, plain and simple,” said Danielle Miller, counsel for the college.

Miller largely dismissed the testimony of the other trustees present on the basis that they are friends of Del Grande’s.

Miller recounted what happened, saying Del Grande told Dallin that she had been influenced by the media and that she was a “pawn” for an LGBT activist teacher. He said she was “brainwashed” and that her views were incompatible with her role as a student leader in a Catholic board.

Dallin said at a hearing on Nov. 30, 2022, that she was “was really emotional and really hurt” at the end of the encounter. Miller made the case for Dallin being a strong person and not overly sensitive.

“He had this ordinarily composed, confident teenager reduced to tears,” she said.

Lugosi argued that Del Grande was following his conscience and an oath he took to uphold the Catholic faith as a trustee. Lugosi noted that Section 93 of the Constitution Act protects denominational schools.

“The whole purpose of having a Catholic school system is to promote the Catholic faith, Catholic teachings, and to defend the Catholic faith, because otherwise there’s no point having a Catholic school system at all,” he said.

‘Slippery Slope’ Comment

Del Grande argued against including “gender identity” and similar terms in the board’s code of conduct on Nov. 7, 2019. He said the board would be going down a “slippery slope” that could lead to them adding “bestiality, pedophilia, gerontophilia,” and other philias as well—he listed off a few dozen.

“There was an outcry from his remarks, not just from the LGBTQ-plus community who were targeted, but from the Ontario Catholic School Trustees’ Association who stated without reservation that they repudiated his comments, same with political figures in the city and province, same with parents,” Miller said.

Lugosi argued that his client, Del Grande, was employing a technique of hyperbolic rhetoric as used by a former Toronto city councillor, Howard Moscoe, who would use gross exaggeration to jolt people into seeing his point.

“If you’re going to use a cultural reference, it would help if anyone understood it,” Miller countered. “Even if it had been understood, it would not mitigate how offensive a comparison it was.”

Lugosi said democracy counts on people—especially elected officials—being able to speak frankly on sensitive topics.

“Where’s your free and democratic society if the very foundation of democracy is torn apart because you have to mind your Ps and Qs and everything you say?” Lugosi said.

While he argued “qualified privilege”—a special legal protection for elected officials’ speech—applies to school trustees, the college argued that it does not.

Independent legal counsel Julie Maciura gave advice to the tribunal panel members about what they should keep in mind while evaluating arguments on both sides.

“My advice to you is that this is, in fact, the strongest of the member’s arguments: That is, is it reasonable to exercise your jurisdiction over Mr. Del Grande in this case and make a finding of misconduct for his off-duty comments as a school trustee when he has never worked as a teacher and had not identified himself as a member of the College of Teachers at the time?” she said.

It matters, she said, that Del Grande apologized to Dallin when she began to cry.

She said the panel will have to balance Del Grande’s freedom of expression rights against the college’s mandate to protect the profession.

Maciura advised the panel to review previous cases, including Peterson’s, to consider relevant circumstances mentioned in determining whether off-duty conduct rises to the level of misconduct as a member of the profession.